It’s quite a rarity for a practising lawyer to suggest serious unethicality on the part of his or her colleagues, so when it happens it’s worth taking notice.
Often too the allegations need to be carefully circumscribed with the ifs and buts of unadjudicated facts and speculation. Not so this blog by Jolyon Maugham, where he has spoken out with clarity and I suspect not a little courage. He speaks, for instance, of, ‘a prominent QC at the Tax Bar’ who ‘expresses a view on the law that is so far removed from legal reality that I do not believe he can genuinely hold the view he says he has. At best he is incompetent. But at worst, he is criminally fraudulent.’ And this gentleman is part of a posse of, ‘slightly under half a dozen names… the Boys Who Won’t Say No’. The existence of this group is apparently well known within the tax fraternity.
Part of Jolyon’s beef is that these barristers are unlikely to be sued by their lay clients and, if they do get sued, they are shielded from their responsibility by the Bar Mutual Fund. The ‘boys’ pick up, ‘large cheques for giving advice he cannot believe to be right – and his insurance premiums rise no more than mine…. They grow rich saying yes when no one is better placed than them to know they should say no.’ He suggests consideration be given to importing US rules requiring that, ‘Written tax advice must not be based on unreasonable factual or legal assumptions or unreasonably rely upon representations of the client or others, and it must consider all relevant facts and law. Where written advice does not meet those standards, the practitioner would face direct financial penalties.’ It’s the type of rule which might be properly applied to any situation in which a barrister or solicitor is giving an opinion. Enron, Lehman, the News of the World’s hacking saga all involved opinions which might have benefited from more circumspection or risk sharing between adviser and client.
Opinions are not well policed by relying on the lawyer’s obligations to the clients or current ethical rules. David Kershaw and I argued the point in detail using Lehman as a case study. Opinions are supposed to be neutral documents but lawyers and sophisticated clients can easily turn them towards being advocacy documents with varying degrees of subtlety and risk. Sometimes this has disastrous results.
The Bar’s Code of Conduct is not as well set up as the SRA’s Code for transactional work (not a great race to come second in), but there cannot be much doubt that a barrister giving opinion of the sort outlined above would be breaching their core duties to act with honesty and integrity, to maintain their independence and to not behave in a way likely to diminish trust and confidence the public places in the profession. Duties to the court, in so far as Opinions are given in the shadow of the court, and duties to act in the interests of each client may also be in doubt. It might pretty much constitute a full set of core duty violations. It may of course be the case that the Bar Standards Board are already investigating such complaints.
Any barrister coming across serious misconduct is obliged to report it. We can only speculate on whether that has occurred and the Bar Standards Board will decline to tell us on the basis that such complaints must be treated as confidential. It’s not the kind of approach that fosters public confidence. They should tell us whether the allegations are being investigated and can do so without naming names.
Richard Moorhead is Professor of Law and Professional Ethics at UCL, you can read his blog here.